Trump Administration Rolls Back ESA Regulations

In 2019 the U.S. Fish and Wildlife Service promulgated significant rollbacks to its regulations implementing the Endangered Species Act, especially sections 4 and 7 of the Act.  These address the endangered species listing and delisting process, designation of critical habitat, and consultation with other federal agencies. Interior Department Secretary Bernhardt has stated that these roll backs will make the ESA more efficient and “ensures more resources can go where they will do the most good: on-the-ground conservation.” While efficiency and being pro-industry are important issues for conservative administrators, I believe that these rollbacks significantly weaken the ESA’s ability to protect this nation’s important biodiversity and will increase the likelihood of species extinctions.  

One the most detrimental changes was the removal of regulatory requirements that listing decisions be made “without reference to possible economic or other impacts of such determination.” Under the new amendment to the ESA regulations, wildlife listing decisions may now consider the economic impacts of such a determination. This rollback is obviously beneficial to private landowners who are subject to the ESA. However, commentators have argued that listing decisions should be made solely on the best scientific data available for species preservation rather than economic concerns. 

Another important change related to the situations in which a critical habitat no longer needs to be designated at the time of listing. Agencies will now also have to satisfy a higher standard of scrutiny for unoccupied areas to be designated as a “critical habitat”. Agencies now must first evaluate occupied habitats before considering unoccupied habitat for designation as a critical habitat. In addition, unoccupied habitat must now contain one or more physical or biological features essential to the species survival to qualify for “critical habitat” designation.  

Finally, the most significant change to the ESA is arguably the removal of the “blanket 4(d) rule”. Previously, Section 4(d) of the ESA automatically provided “threatened” species with the same “take” protections of “endangered” species. With the removal of this blanket rule, the U.S. Fish and Wildlife Service will now need to establish a specific take provision for each “threatened” species on a case-by-case basis. Even though this 4(d) rescission only applies to future “threatened” species listings or downgrading of species listed as endangered to threatened status, commentators have warned that rolling back Section 4(d) could prevent newly listed “threatened” species from receiving adequate protection. In particular, it has been estimated that the U.S. Fish and Wildlife Service will need to more than double its output of species-specific rules to maintain the same level of protection that was previously afforded under the ESA.   

These pro-efficiency and pro-industry changes to the ESA have undermined the Act’s ability to protect our nations’ species. I believe these changes are a major step in the wrong direction. Our country’s wildlife already face the ever-increasing destructive dangers of climate change which are seen in yearly devastating wildfires and hurricanes. These issues coupled with the rollbacks of the ESA puts our wildlife at a great risk of extinction.     

Corey Langer

An Uncertain Future For Our Gas System

On August 27th, 2020, the California Public Utilities Commission (CPUC) approved Agenda Item 27, a Biomethane Standard Interconnection Tariff (R. 13-02-008). In layman’s terms, this rulemaking created a standard process for interconnecting renewable natural gas producers with any investor-owned utility pipelines. For many citizens, this groundbreaking ruling represents a huge step towards decarbonizing our power infrastructure, since it creates an efficient process for lessening our reliance on fossil fuels in our power system.

Furthermore, there is one more significant issue. As more and more users begin to leave the gas system, fewer consumers, oftentimes low-income communities, are left to continue paying for the maintenance of the entirety of the infrastructure, which are costs that would otherwise have been supported by the customers that have switched. Similar issues arise with the Power Charge Indifference Adjustment (PCIA) exit fee which is paid by electricity users that want to buy their power from Community Choice Aggregates instead of their traditional utilities; this charge was used to supplement the transmission costs for utilities. While similar to the gas system change, the PCIA charge is triggered by users simply switching providers, rather than moving off the transmission infrastructure entirely. Thus as Gridworks, a consulting organization focusing on transforming our energy system for the future, puts it, we have two paths forward:

However, there is also different side to this debate.  Since much of the natural gas system, especially the transmission pipeline portion, is prone to leakage, it is one of the largest contributors to atmospheric pollution. Thus, some view this ruling as allowing the natural gas industry to entrench itself in an effort to stay relevant and provide different kinds of gas, contrary to calls for widespread electrification of buildings, cars, and homes. For instance, the city of Berkeley recently became the first in the nation to prohibit natural gas pipeline hookups to new buildings. Consequently, the system of pipeline infrastructure is slowly falling into disarray with an uncertain plan for its future, as communities are likely to continue to leave the system.

  1. A smart, managed path that maximizes benefits and minimizes costs for everyone
  2. An uncontrolled path is reactive and costly

The upshot of Gridworks’ analysis of these two paths is that California needs to put a plan in place to address this soon so as to avoid the inevitable scramble of supporting an inefficient and outdated gas system. Yet, this is easier said than done. In effect, this will require creation of a formal state-wide effort ensuring a sound and sensible transition off the system, while adjusting gas customer rates in a way that incentivizes the exploration of alternative external funding sources to recover gas transition costs. Unfortunately, the 2019 report by Gridworks, a leader in the energy consulting field, offers no further guidance than big picture considerations, and a grim reminder that this transformation will be one of the most challenging tasks facing us in the 2020 decade.

Wesley Clark

California Wildfires

            In a rare acknowledgment of corporate wrongdoing, Pacific Gas & Electric (PG&E) recently pled guilty to 84 counts of involuntary manslaughter arising out of its failure to maintain a transmission line that sparked the devastating Camp Fire in 2018.  In the aftermath of the public backlash against PG&E, and faced with increasingly severe wildfires in the state, the California Public Utilities Commission (CPUC), hosted workshops in August of this year to seek the public’s input on the safety practices of the state’s three largest investor-owned electric utilities (IOUs), including PG&E, to mitigate California’s evermore devastating wildfires.  Implementation of the workshop results, titled the 2021 Wildfire Mitigation Plan, has been tasked to the CPUC’s newly created Wildfire Safety Division.  Among the most impactful action items of the Plan will be (1) to standardize data collection across utilities, while (2) increasing local outreach efforts to better direct the public during such a dangerous time (D.20-05-051).

Given that 15 of the 20 most destructive wildfires in California’s history have occurred since the year 2000, engagement of utilities and the public through these workshop was both laudable and long overdue.  However, the Division’s focus on data collection and local outreach to enhance preparation for an exacerbated fire season fails to address the root cause of the mess we are in: climate change.  As a warming climate produces longer and hotter summer dry seasons and more frequent droughts, wildfires during California’s fire season will become more severe and destructive.

            Even though the Wildfire Mitigation Plan will provide a more structured response to exacerbated wildfire risks, it will be insufficient to prevent future fires.  Given that the Camp Fire caused $8.5 billion of damage, developing action items on preventative measures in addition to reactive processes would be time and effort well spent.

As a concerned citizen within PG&E service territory, I will continue to be an advocate for the CPUC to be involved in one of the best preventative measures currently undertaken by the California Department of Forestry and Fire Prevention (CAL FIRE): controlled burns. This fire management method prevents serious wildfires by burning in a controlled manner the excess brush and foliage that otherwise would otherwise serve as fuel for more serious uncontrolled fires. This method was in fact widely used in pre-historic California and was largely successful up until the 1980s.  However, budget cuts and failure by Congress to renew the requirements allowed the lapse of this fire control method.  Interestingly, controlled burn strategies to maintain forest health continue to be lobbied for at the national level, but systematic implementation continues to remain elusive. However, as the regulatory body overseeing the safety of utility operations, it is well within the CPUC’s authority to require electric utilities to work more closely with CAL FIRE to get us back on track to a time before California became known as the wildfire state.

Wesley Clark

Stratospheric Ozone Protection & Mario Molina

By coincidence, we just discussed protection of the stratospheric ozone layers in my environmental law course this week when I saw the obituary for Dr. Mario Molina yesterday, a Mexican-American scientist. His research on damage to the ozone layer by CFCs and other ozone depleting chemicals was awarded a Nobel Prize and eventually prompted the negotiation of the Ozone Treaties (Vienna Convention and Montreal Protocol). These agreements have become among the most successful international environmental treaties to date and continue to serve as models for modern environmental treaty-making. In his later days, he used his role to speak out on these broader environmental policy issues, including in the context of climate change. What a loss.

https://www.sciencemag.org/news/2020/10/nobel-laureate-who-helped-save-ozone-layer-dies

“Advancing Racial Justice Means Advancing Environmental Justice,” Environmental Forum Nov./Dec. 2020

See the last piece (“Complainant Rights and Civil Rights Act Title VI”) in this collection of opinion pieces in the Environmental Forum’s (Nov./Dec. 2020) Debate “Advancing Racial Justice Means Advancing Environmental Justice” for my contribution.

“Advancing Racial Justice Means Advancing Environmental Justice,” Environmental Forum Nov./Dec. 2020

ABA SEER (Environment Section) 2020-2021 Law Student Writing Competitions

The ABA Section on Environment, Energy, and Resources has some terrific writing prize opportunities for law students, well designed for submission of course papers. Many of them have a 20 page length limit on submissions. All of them have a submission deadline of May 31, 2021, with a $1000 cash prize for the top paper. For additional requirements and details, see the links.

California Lawyers Assocation, Environmental Law Section – Environmental Law Diversity and Inclusion Fellowship Program (Deadline: October 26, 2020)

A terrific fellowship opportunity for qualified law students. One of my students was a recipient recently and had a great experience. The program provides a summer $6500 stipend and helps place students in a valuable environmental law summer internship.

To see the fellowship criteria, see the program description on the CLA Environmental Law Section’s website at https://calawyers.org/section/environmental-law/fellowships/.

[The program’s description of fellowship qualification criteria are quite expansive.]